Preview
INDEX NO. 161105/2021
(FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
a ee eee eee een en neuee tees eau ee aaa tse
FIFTH PARTNERS LLC, Index No.: 161105/2021
Plaintiff,
-against- AMENDED VERIFIED
ANSWER
PUNCH HOUSE FLATIRON LLC, JOSEPH W.
FOLEY and NADA VASILIJEVIC,
Defendants.
ae ttt ene nnn nnn enn nnnnnne nnn nnnnnnennenanennn!
Defendants PUNCH HOUSE FLATIRON LLC (“Punch House”), JOSEPH W.
FOLEY (“Foley”), and NADA VASILIJEVIC (“Vasilijevic”) (hereafter collectively refer
to as “Defendants”), by and through their attorneys, KEVIN KERVENG TUNG, P.C.,
answer the plaintiffs Complaint upon information and belief as follows:
THE PARTIES & FACTS
1 Deny knowledge and information sufficient to form a belief as to the truth
of the allegations contained in the paragraph designated 1 of the verified complaint.
2. Deny knowledge and information sufficient to form a belief as to the truth
of the allegations contained in the paragraph designated 2 of the verified complaint.
3 Deny each and every allegation contained in the paragraph designated 3 of
the verified complaint except admit that Punch House is an LLC existing under the laws
of the State of New York.
4 Deny each and every allegation contained in the paragraph designated 4 of
the verified complaint except admit that Foley is a resident of the City and State of New
York.
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NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
5 Deny each and every allegation contained in the paragraph designated 5 of
the verified complaint except admit that Vasilijevic is a resident of the City and State of
New York.
6 Deny each and every allegation contained in the paragraph designated 6 of
the verified complaint and respectfully refers the Court to the said lease for a precise and
accurate interpretation.
7 Deny each and every allegation contained in the paragraph designated 7 of
the verified complaint and respectfully refers the Court to the said lease for a precise and
accurate interpretation.
8 Deny each and every allegation contained in the paragraph designated 8 of
the verified complaint and respectfully refers the Court to the said lease for a precise and
accurate interpretation.
9. Deny each and every allegation contained in the paragraph designated 9 of
the verified complaint and respectfully refers the Court to the said lease for a precise and
accurate interpretation.
10. Deny each and every allegation contained in the paragraph designated 10
of the verified complaint.
11. Deny each and every allegation contained in the paragraph designated 11
of the verified complaint.
12. Deny each and every allegation contained in the paragraph designated 12
of the verified complaint and admit that the keys to the premises were returned to the
landlord.
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NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
18; Deny each and every allegation contained in the paragraph designated 13
of the verified complaint.
14. Deny each and every allegation contained in the paragraph designated 14
of the verified complaint.
Terms of the Lease
15. Deny each and every allegation contained in the paeeenh designated 15
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
16. Deny each and every allegation contained in the paragraph designated 16
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
17. Deny each and every allegation contained in the paragraph designated 17
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
18. Deny each and every allegation contained in the paragraph designated 18
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
19. Deny each and every allegation contained in the paragraph designated 19
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
20. Deny each and every allegation contained in the paragraph: designated 20
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
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NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
21. Deny each and every allegation contained in the paragraph designated 21
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
22. Deny each and every allegation contained in the paragraph designated 22
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
23. Deny each and every allegation contained in the paragraph designated 23
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
24. Deny each and every allegation contained in the paragraph designated 24
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
25. Deny each and every allegation contained in the Paragraph designated 25
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
26. Deny each and every allegation contained in the paragraph designated 26
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
27. Deny each and every allegation contained in the paragraph designated 27
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
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INDEX NO. 161105/2021
(FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
28. Deny each and every allegation contained in the paragraph designated 28
of the verified complaint and respectfully refers the Court to the said guaranty for a
precise and accurate interpretation.
29. Deny each and every allegation contained in the paragraph designated 29
of the verified complaint.
30. Deny each and every allegation contained in the paragraph designated 30
of the verified complaint and respectfully refers the Court to the said guaranty for a
precise and accurate interpretation.
31. Deny each and every allegation contained in the paragraph designated 31
of the verified complaint and respectfully refers the Court to the said guaranty for a
precise and accurate interpretation.
AS AND FOR A FIRST CAUSE OF ACTION
32. Deny each and every allegation contained in the paragraph designated 32
of the verified complaint as otherwise pleaded herein.
33. Deny each and every allegation contained in the paragraph designated 33
of the verified complaint.
34. Deny each and every allegation contained in the paragraph, designated 34
of the verified complaint.
35. Deny each and every allegation contained in the paragraph designated 35
of the verified complaint.
36. Deny each and every allegation contained in the paragraph. designated 36
of the verified complaint.
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NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
au: Deny each and every allegation contained in the paragraph designated 37
of the verified complaint.
38. Deny each and every allegation contained in the paragraph designated 38
of the verified complaint.
39. Deny knowledge and information sufficient to form a belief as to the truth
of the allegations contained in the paragraph designated 39 of the verified complaint.
40. Deny each and every allegation contained in the paragraph designated 40
of the verified complaint.
41. Deny knowledge and information sufficient to form a belief as to the truth
of the allegations contained in the paragraph designated 41 of the verified complaint.
AS AND FOR A SECOND CAUSE OF ACTION
42. Deny each and every allegation contained in the paragraph designated 42
of the verified complaint as otherwise pleaded herein.
43. Deny each and every allegation contained in the paragraph. designated 43
of the verified complaint.
44, Deny each and every allegation contained in the paragraph designated 44
of the verified complaint.
45. Deny each and every allegation contained in the paragraph designated 45
of the verified complaint and respectfully refers the Court to the said guaranty for a
precise and accurate interpretation.
46. Deny each and every allegation contained in the paragraph designated 46
of the verified complaint.
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(FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
47. Deny each and every allegation contained in the paragraph designated 47
of the verified complaint.
48. Deny each and every allegation contained in the paragraph designated 48
of the verified complaint and respectfully refers the Court to the said guaranty for a
precise and accurate interpretation.
49. Deny each and every allegation contained in the need designated 49
of the verified complaint.
50. Deny each and every allegation contained in the paragraph designated 50
of the verified complaint.
Sl. Deny each and every allegation contained in the paragraph designated 51
of the verified complaint and respectfully refers the Court to the said legislation for a
precise and accurate interpretation.
52. Deny knowledge and information sufficient to form a belief as to the truth
of the allegations contained in the paragraph designated 52 of the verified complaint.
53. Deny knowledge and information sufficient to form a belief as to the truth
of the allegations contained in the paragraph designated 53 of the verified complaint.
AS AND FOR A THIRD CAUSE OF ACTION
54. Deny each and every allegation contained in the paragraph, designated 54
of the verified complaint as otherwise pleaded herein.
55. Deny each and every allegation contained in the paragraph designated 55
of the verified complaint and respectfully refers the Court to the said lease for a precise
and accurate interpretation.
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INDEX NO. 161105/2021
(FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 oo NYSCEF: 02/11/2022
56. Deny each and every allegation contained in the paragraph designated 56
of the verified complaint and respectfully refers the Court to the said guaranty for a
precise and accurate interpretation.
57. Deny knowledge and information sufficient to form a belief as to the truth
of the allegations contained in the paragraph designated 57 of the verified complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
58 Plaintiff failed to state a cause of action against the defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
59. The Court has no jurisdiction over the subject matter of the verified
complaint.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
60. The claim arising out of the subject matter, transactions and occurrences
alleged in the Plaintiff's Verified Complaint are barred by the doctrine of laches.
AS AND FOR A FOURTH AFFIRMATIVE
DEFENSE, DEFENDANTS ALLEGE:
61. Plaintiff's claims are barred, precluded, or limited by the doctrine of
estoppel.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
62. Plaintiff's claims are barred, precluded, or limited by the doctrine. of
waiver.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
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(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
63. The answering defendants dispute the amount alleged in the complaint.
AS AND FOR A SEVENTH AFFIRMATIVE
DEFENSE, DEFENDANTS ALLEGE:
64 Plaintiff failed to mitigate the damages.
AS AND FOR AN EIGHTH AFFIRMATIVE
DEFENSE, DEFENDANTS ALLEGE:
65. The instant action shall be dismissed because the Plaintiff breached
implied warranty of habitability, Plaintiff failed to deliver the premises to the Defendants
in a condition that Defendants could use the premises and defendant was constructively
evicted by the Plaintiff.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
66. Plaintiff's claims are barred, precluded, or limited by the doctrine of
Accord and Satisfaction.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
67. Plaintiffs claims are barred because Defendants did not directly or
proximately cause or contribute to any damage, loss or injury sustained by Plaintiff.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
68. By Plaintiffs unclean hand, conduct, and actions, Plaintiff ‘has waived its
tight to any recovery against the Defendants.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGE:
69. The Plaintiff is estopped from recovery against the Defendant due to its
own conduct and action, including but not limited to, conduct in violation of the covenant
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NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO 161105/2021
NYSCEF DOC. NO 20 RECEIVED NYSCEF 02/11/2022
of good faith and fair dealing and conduct which constitutes unfair and deceptive
business practices.
AS AND FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF
DEFENDANTS ALLEGE:
(Fraudulent Inducement)
70. Defendants repeat, reiterate and reallege the allegations set forth above in
paragraphs 1 through 69 as if fully set forth at length herein.
71 Before the Defendant Tenant entered into the lease for the premises,
Plaintiff Landlord promised that the storefront renovation would be completed on or
before July 15, 2021 and the scaffolding surrounding the store would be removed in the
last week of August 2021
72. Defendant Tenant entered into the Lease in specific reliance upon the
representations made by the Plaintiff Landlord that the Landlord would be able to
complete the storefront renovation before July 15, 2021 and the scaffolding surrounding
the store would be removed in the last week of August 2021
73. The representations made by the Plaintiff and its employees to be true and
complete representations of the condition of the premises to be delivered to the
Defendant Tenant on or before July 15, 2021 as well as the scaffolding surrounding the
store would be removed in the last week of August 2021 and were specifically warranted
as true under the terms of the lease entered by the Defendant Tenant.
74 Plaintiff and its employees were all aware of Defendant Tenant’s intention
to open the Premises for business within the time period between July 22" to 28" of
2021
10
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NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
75. Upon information and belief, the Plaintiff and its employees knowingly
and with intention to deceive, represented to the Defendant Tenant that the above
representations were true.
76. Defendant Tenant, without knowledge that the above representation made
by Plaintiff were false, depended and relied upon the truth of the representation and upon
the Plaintiff's representations with respect to the false promise that the storefront
renovation would be completed on or before July 15, 2021 and the scaffolding
surrounding the store would be removed in the last week of August 2021. As a result of
Plaintiff's false inducement, Defendant Tenant entered into the lease.
77. Defendant Tenant would not have entered into the lease had the Defendant
Tenant been aware of the true situation and condition of the premises to ae delivered to
Defendant Tenant.
78. Plaintiff Landlord failed to deliver the premises timely and failed to
deliver the premises in the condition promised usable to the Defendant Tenant. The
failure to perform on the part of the Plaintiff landlord has caused significant damages to
the Defendant Tenant.
79. The failure to perform in accordance with the terms of the lease and the
false promises made by the Plaintiff Landlord, Defendant Tenant suffered damages to be
determined by the trial.
80. By email communications to the Plaintiff Landlord and its attorney and
the fact that Defendant Tenant had vacated from the premises, Defendant Tenant
demanded rescission of the lease. Plaintiff Landlord refused to rescind the lease but
11
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(FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
instituted the instant action for accelerated damages for the rent due for the entire period
of the lease.
81. Defendant Tenant has no adequate remedy at law.
WHEREFORE, the defendants demand judgment dismissing the complaint in its
entirety, declaring the lease entered be rescinded and canceled, awarding damages to be
determined by trial on the counterclaim, awarding the defendant with reasonable attorney
fees, cost, fees and disbursements, and for such other and further relief as the court deems
just and proper.
Dated: Queens, New York
January 26, 2022
KEVIN KERVENG TUNG, P.C.
Attorneys for Defendants
Ld
By: Kevin K. Tung, Esq.
Queens Crossing Business Center
136-20 38th Ave., Suite 3D
Flushing, NY 11354
(718) 939-4633
To
David B. Rosenbaum
BORAH, GOLDSTEIN, ALTSCHULER,
NAHINS & GOIDEL, P.C.
377 Broadway, 6" Floor
New York, New York 10013
12
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INDEX NO. 161105/2021
(FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022
(FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022
CORPORATE VERIFICATION
State of New York )
)ss.t
County of New York )
Joseph W, Foley, being duly sworn, deposes and says:
fle is the member of Punch House Flatiron, LLC. the defendant in the above-
entitled action, that he hus read the foregoing Answer with Counterclaim and knows that
the contents thereof; {hat the same is truc to his knowledge. except as to the matters
therein stated to be alleged upon information and belief. and that as to those matters he
believes them to be true.
Dated: New York, New York
pan
February LO, 2022
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INDEX NO. 161105/2021 (FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK a ee eee eee een en neuee tees eau ee aaa tse FIFTH PARTNERS LLC, Index No.: 161105/2021 Plaintiff, -against- AMENDED VERIFIED ANSWER PUNCH HOUSE FLATIRON LLC, JOSEPH W. FOLEY and NADA VASILIJEVIC, Defendants. ae ttt ene nnn nnn enn nnnnnne nnn nnnnnnennenanennn! Defendants PUNCH HOUSE FLATIRON LLC (“Punch House”), JOSEPH W. FOLEY (“Foley”), and NADA VASILIJEVIC (“Vasilijevic”) (hereafter collectively refer to as “Defendants”), by and through their attorneys, KEVIN KERVENG TUNG, P.C., answer the plaintiffs Complaint upon information and belief as follows: THE PARTIES & FACTS 1 Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in the paragraph designated 1 of the verified complaint. 2. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in the paragraph designated 2 of the verified complaint. 3 Deny each and every allegation contained in the paragraph designated 3 of the verified complaint except admit that Punch House is an LLC existing under the laws of the State of New York. 4 Deny each and every allegation contained in the paragraph designated 4 of the verified complaint except admit that Foley is a resident of the City and State of New York. 1 of 13 INDEX NO. 161105/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 5 Deny each and every allegation contained in the paragraph designated 5 of the verified complaint except admit that Vasilijevic is a resident of the City and State of New York. 6 Deny each and every allegation contained in the paragraph designated 6 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 7 Deny each and every allegation contained in the paragraph designated 7 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 8 Deny each and every allegation contained in the paragraph designated 8 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 9. Deny each and every allegation contained in the paragraph designated 9 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 10. Deny each and every allegation contained in the paragraph designated 10 of the verified complaint. 11. Deny each and every allegation contained in the paragraph designated 11 of the verified complaint. 12. Deny each and every allegation contained in the paragraph designated 12 of the verified complaint and admit that the keys to the premises were returned to the landlord. 2 of 13 INDEX NO. 161105/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 18; Deny each and every allegation contained in the paragraph designated 13 of the verified complaint. 14. Deny each and every allegation contained in the paragraph designated 14 of the verified complaint. Terms of the Lease 15. Deny each and every allegation contained in the paeeenh designated 15 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 16. Deny each and every allegation contained in the paragraph designated 16 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 17. Deny each and every allegation contained in the paragraph designated 17 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 18. Deny each and every allegation contained in the paragraph designated 18 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 19. Deny each and every allegation contained in the paragraph designated 19 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 20. Deny each and every allegation contained in the paragraph: designated 20 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 3 of 13 INDEX NO. 161105/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 21. Deny each and every allegation contained in the paragraph designated 21 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 22. Deny each and every allegation contained in the paragraph designated 22 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 23. Deny each and every allegation contained in the paragraph designated 23 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 24. Deny each and every allegation contained in the paragraph designated 24 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 25. Deny each and every allegation contained in the Paragraph designated 25 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 26. Deny each and every allegation contained in the paragraph designated 26 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 27. Deny each and every allegation contained in the paragraph designated 27 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 4 of 13 INDEX NO. 161105/2021 (FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 28. Deny each and every allegation contained in the paragraph designated 28 of the verified complaint and respectfully refers the Court to the said guaranty for a precise and accurate interpretation. 29. Deny each and every allegation contained in the paragraph designated 29 of the verified complaint. 30. Deny each and every allegation contained in the paragraph designated 30 of the verified complaint and respectfully refers the Court to the said guaranty for a precise and accurate interpretation. 31. Deny each and every allegation contained in the paragraph designated 31 of the verified complaint and respectfully refers the Court to the said guaranty for a precise and accurate interpretation. AS AND FOR A FIRST CAUSE OF ACTION 32. Deny each and every allegation contained in the paragraph designated 32 of the verified complaint as otherwise pleaded herein. 33. Deny each and every allegation contained in the paragraph designated 33 of the verified complaint. 34. Deny each and every allegation contained in the paragraph, designated 34 of the verified complaint. 35. Deny each and every allegation contained in the paragraph designated 35 of the verified complaint. 36. Deny each and every allegation contained in the paragraph. designated 36 of the verified complaint. 5 of 13 INDEX NO. 161105/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 au: Deny each and every allegation contained in the paragraph designated 37 of the verified complaint. 38. Deny each and every allegation contained in the paragraph designated 38 of the verified complaint. 39. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in the paragraph designated 39 of the verified complaint. 40. Deny each and every allegation contained in the paragraph designated 40 of the verified complaint. 41. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in the paragraph designated 41 of the verified complaint. AS AND FOR A SECOND CAUSE OF ACTION 42. Deny each and every allegation contained in the paragraph designated 42 of the verified complaint as otherwise pleaded herein. 43. Deny each and every allegation contained in the paragraph. designated 43 of the verified complaint. 44, Deny each and every allegation contained in the paragraph designated 44 of the verified complaint. 45. Deny each and every allegation contained in the paragraph designated 45 of the verified complaint and respectfully refers the Court to the said guaranty for a precise and accurate interpretation. 46. Deny each and every allegation contained in the paragraph designated 46 of the verified complaint. 6 of 13 INDEX NO. 161105/2021 (FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 47. Deny each and every allegation contained in the paragraph designated 47 of the verified complaint. 48. Deny each and every allegation contained in the paragraph designated 48 of the verified complaint and respectfully refers the Court to the said guaranty for a precise and accurate interpretation. 49. Deny each and every allegation contained in the need designated 49 of the verified complaint. 50. Deny each and every allegation contained in the paragraph designated 50 of the verified complaint. Sl. Deny each and every allegation contained in the paragraph designated 51 of the verified complaint and respectfully refers the Court to the said legislation for a precise and accurate interpretation. 52. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in the paragraph designated 52 of the verified complaint. 53. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in the paragraph designated 53 of the verified complaint. AS AND FOR A THIRD CAUSE OF ACTION 54. Deny each and every allegation contained in the paragraph, designated 54 of the verified complaint as otherwise pleaded herein. 55. Deny each and every allegation contained in the paragraph designated 55 of the verified complaint and respectfully refers the Court to the said lease for a precise and accurate interpretation. 7 of 13 INDEX NO. 161105/2021 (FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 oo NYSCEF: 02/11/2022 56. Deny each and every allegation contained in the paragraph designated 56 of the verified complaint and respectfully refers the Court to the said guaranty for a precise and accurate interpretation. 57. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in the paragraph designated 57 of the verified complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 58 Plaintiff failed to state a cause of action against the defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 59. The Court has no jurisdiction over the subject matter of the verified complaint. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 60. The claim arising out of the subject matter, transactions and occurrences alleged in the Plaintiff's Verified Complaint are barred by the doctrine of laches. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 61. Plaintiff's claims are barred, precluded, or limited by the doctrine of estoppel. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 62. Plaintiff's claims are barred, precluded, or limited by the doctrine. of waiver. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 8 of 13 INDEX NO. 161105/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 63. The answering defendants dispute the amount alleged in the complaint. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 64 Plaintiff failed to mitigate the damages. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 65. The instant action shall be dismissed because the Plaintiff breached implied warranty of habitability, Plaintiff failed to deliver the premises to the Defendants in a condition that Defendants could use the premises and defendant was constructively evicted by the Plaintiff. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 66. Plaintiff's claims are barred, precluded, or limited by the doctrine of Accord and Satisfaction. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 67. Plaintiffs claims are barred because Defendants did not directly or proximately cause or contribute to any damage, loss or injury sustained by Plaintiff. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 68. By Plaintiffs unclean hand, conduct, and actions, Plaintiff ‘has waived its tight to any recovery against the Defendants. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE: 69. The Plaintiff is estopped from recovery against the Defendant due to its own conduct and action, including but not limited to, conduct in violation of the covenant 9 of 13 = INDEX NO. 161105/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO 161105/2021 NYSCEF DOC. NO 20 RECEIVED NYSCEF 02/11/2022 of good faith and fair dealing and conduct which constitutes unfair and deceptive business practices. AS AND FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF DEFENDANTS ALLEGE: (Fraudulent Inducement) 70. Defendants repeat, reiterate and reallege the allegations set forth above in paragraphs 1 through 69 as if fully set forth at length herein. 71 Before the Defendant Tenant entered into the lease for the premises, Plaintiff Landlord promised that the storefront renovation would be completed on or before July 15, 2021 and the scaffolding surrounding the store would be removed in the last week of August 2021 72. Defendant Tenant entered into the Lease in specific reliance upon the representations made by the Plaintiff Landlord that the Landlord would be able to complete the storefront renovation before July 15, 2021 and the scaffolding surrounding the store would be removed in the last week of August 2021 73. The representations made by the Plaintiff and its employees to be true and complete representations of the condition of the premises to be delivered to the Defendant Tenant on or before July 15, 2021 as well as the scaffolding surrounding the store would be removed in the last week of August 2021 and were specifically warranted as true under the terms of the lease entered by the Defendant Tenant. 74 Plaintiff and its employees were all aware of Defendant Tenant’s intention to open the Premises for business within the time period between July 22" to 28" of 2021 10 10 of 13 INDEX NO. 161105/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 75. Upon information and belief, the Plaintiff and its employees knowingly and with intention to deceive, represented to the Defendant Tenant that the above representations were true. 76. Defendant Tenant, without knowledge that the above representation made by Plaintiff were false, depended and relied upon the truth of the representation and upon the Plaintiff's representations with respect to the false promise that the storefront renovation would be completed on or before July 15, 2021 and the scaffolding surrounding the store would be removed in the last week of August 2021. As a result of Plaintiff's false inducement, Defendant Tenant entered into the lease. 77. Defendant Tenant would not have entered into the lease had the Defendant Tenant been aware of the true situation and condition of the premises to ae delivered to Defendant Tenant. 78. Plaintiff Landlord failed to deliver the premises timely and failed to deliver the premises in the condition promised usable to the Defendant Tenant. The failure to perform on the part of the Plaintiff landlord has caused significant damages to the Defendant Tenant. 79. The failure to perform in accordance with the terms of the lease and the false promises made by the Plaintiff Landlord, Defendant Tenant suffered damages to be determined by the trial. 80. By email communications to the Plaintiff Landlord and its attorney and the fact that Defendant Tenant had vacated from the premises, Defendant Tenant demanded rescission of the lease. Plaintiff Landlord refused to rescind the lease but 11 11 of 13 INDEX NO. 161105/2021 (FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 instituted the instant action for accelerated damages for the rent due for the entire period of the lease. 81. Defendant Tenant has no adequate remedy at law. WHEREFORE, the defendants demand judgment dismissing the complaint in its entirety, declaring the lease entered be rescinded and canceled, awarding damages to be determined by trial on the counterclaim, awarding the defendant with reasonable attorney fees, cost, fees and disbursements, and for such other and further relief as the court deems just and proper. Dated: Queens, New York January 26, 2022 KEVIN KERVENG TUNG, P.C. Attorneys for Defendants Ld By: Kevin K. Tung, Esq. Queens Crossing Business Center 136-20 38th Ave., Suite 3D Flushing, NY 11354 (718) 939-4633 To David B. Rosenbaum BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL, P.C. 377 Broadway, 6" Floor New York, New York 10013 12 12 of 13 INDEX NO. 161105/2021 (FILED: NEW YORK COUNTY CLERK 06/27/2022 12:36 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2022 (FILED: NEW YORK COUNTY CLERK 02/11/2022 10:46 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/11/2022 CORPORATE VERIFICATION State of New York ) )ss.t County of New York ) Joseph W, Foley, being duly sworn, deposes and says: fle is the member of Punch House Flatiron, LLC. the defendant in the above- entitled action, that he hus read the foregoing Answer with Counterclaim and knows that the contents thereof; {hat the same is truc to his knowledge. except as to the matters therein stated to be alleged upon information and belief. and that as to those matters he believes them to be true. Dated: New York, New York pan February LO, 2022 a ‘ losept if W yi Swom to before me this day ofFebruary, 20; He tly, | wt \ ‘0’ve Mee LG a woLL S mee % "Ge, id be IS No Public © SS Sy a " AOS 4, Or 2 fi fF ' 13 of 13